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Click to set custom HTML An employee who exercises his FMLA/CFRA or ADA/FEHA rights due to a qualifying disability or serious medical condition is considered to be in a "protected" class. This means that it is illegal for an employer to treat that employee differently because of his exercise the above workplace disability rights.
Being "protected" does not mean, however, that an employee is protected from any employment action and enjoys some kind of immunity because of his FMLA or ADA status. For instance, when a lay-off takes place, and employee who is on FMLA or ADA leave is subject to lay-off just like any other employee. It would only be illegal to choose an employee for lay-off because of his FMLA /ADA status. The same applies to employment terminations. A disabled employee who engages in some kind of misconduct or violates an employer's policy can be lawfully terminated just like any other employee who never applied for FMLA leave or ADA/FEHA leave or other accommodations. Being in a "protected" class is not a shield against all harm. It's only a legal remedy against being treated differently because you are a member of that class.
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Below is an example of an actual medical note which is likely insufficient in order to put the employer on proper notice of you need for medical leave under FMLA, CFRA, ADA or FEHA. There are two main issues with this medical note: First, even though it states that the employee has "several medical condition", it doesn't identify any such conditions. It would be helpful to the employer if the doctor who wrote this note was a little more specific about the nature of his patient's condition and the resulting limitations. The second issue that it doesn't firmly excuse the employee from work for certain dates. "... prevent her from appearing" is not the same as "unable to report to work between (date) and (date). You should not hesitate to review or have an attorney review the medical note you receive from your doctor, which you plan to transmit to your employer in order to have your medical leave approved, in order to make sure that it is sufficiently specific and complete. Leave under FMLA or CFRA shall not be deemed to have granted unless the employer provides the employee ... a guarantee of employment in the same or a comparable position upon the termination of leave. Gov. Code 12945.2(a). It is an unlawful employment practice for an employer, after grating a requested CFRA medical leave, to refuse to honor its guarantee of reinstatement to the same or comparable position at the end of leave, unless the refusal is justified by a number of limited circumstances, the most common of which is lay-offs, which everyone is equally subject to.
When an employer defends against a wrongful termination claim based on FMLA intereference claim, the employer must demonstrate a legitimate reasons to deny reinstatement to the qualified employee, whose leave is about to expire, and who expects to return to work. One significant power of FMLA and CFRA laws favoring employees is that intent or motive is irrelevant in bringing claims for FMLA or CFRA violation. As long as the law has been violated, even if it an innocent mistake on the part of the employer, the employer will still be liable for CFRA/FMLA violation. The remedies may include payment of damages, reinstatement to work or both. For more information about your rights under FMLA and CFRA, as well as your disability rights at workplace, please visit our other California Employment Lawyer Blog. Under federal law, leave taken for an employee's incapacity due to pregnancy, childbirth or related medical condition is governed by FMLA, just like leave for any other "serious health condition" of an employee. However, the CFRA (California Family Rights Act) expressly excludes an employee's incapacity due to pregnancy, childbirth, or related medical condition. |
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